The
Issue: What
activities can be considered "speech" for purposes of
the First
Amendment?
What happens when speech is mixed with conduct?

Congress
shall
make no law...abridging the
freedom of speech.

The First
Amendment protects against abridgements of the
"freedom of
speech." Although in many cases the question
of whether speech
has been regulated is not in doubt, as with most
restrictions on oral
or written communication, in some it is an important
threshold issue
for courts to consider. If the regulated
activity is not
"speech," then it is not protected by the First
Amendment and there is
no need to extend the constitutional analysis
further.

In 1968, the Court considered the argument of David
Paul O'Brien that
he had a First Amendment right to burn his draft
card on the steps of a
Boston courthouse as a form of protesting U.S.
involvement in the Viet
Nam War. The Court agreed that O'Brien
was engaged in an expressive activity that triggered
a First Amendment
analysis. The Court noted, however, that
O'Brien was punished for
his "conduct" (the burning of the card) and not for
what he was trying
to say about the war. The Court offered in O'Brien a test
for analyzing cases
in which both speech and conduct elements are
present:

[A] government
regulation is
sufficiently justified if it is within the
constitutional
power of the Government; if it furthers an important
or substantial
governmental
interest; if the governmental interest is unrelated to
the suppression
of free expression; and if the incidental restriction
on alleged First
Amendment freedoms is no greater than is essential to
the furtherance
of
that interest.

The O'Brien
test has been
used by the Court in a series of subsequent
cases. In Texas
v Johnson, the Supreme Court
considered another protest of U. S. policy, this
time in the case of a
man who burned a flag at a Republican National
Convention. In a
controversial 5 to 4 decision, the Court overturned
Johnson's
conviction for flag burning, concluding the burning
was "sufficiently
imbued with elements of communication to implicate
the First Amendment"
and was, in fact, protected speech under
the First Amendment. Buckley v
Valeo raised the issue of whether money
(in the form of
campaign donations or expenditures) can be
considered a form of
speech. The Court concluded that it could,
noting that modern
campaigning is impossible without financial
resources.

South Florida Free
Beaches v
Miami is an 11th Circuit decision.
The court in that case
considered the argument that enforcement of Miami's
ordinance
prohibiting public nudity abridged the First
Amendment right of
plaintiffs to "communicate their philosophy that the
human body is
wholesome." The court disagreed, suggesting
that nudity had to be
attached to some other expressive activity, such as
dance or theater,
to raise serious First Amendment issues.

In Doe v Reed
(2010), the
Court considered whether the signing a state
referendum petition is
"speech" within the meaning of the First Amendment
and, if it is,
whether the state's disclosure of the names of
petition signers
violates their First Amendment rights. Eight
members of the Court
agreed that the signing of a referendum petition was
"an expressive
act" implicating the First Amendment. Justice
Scalia disagreed,
seeing the signing as a "legislative act" not within
"the freedom of
speech." On the question of whether the
signers of petitions
generally have a First Amendment right to keep their
identities
private, eight members said no, though they
indicated that "unique
circumstances" surrounding particular referendum
might create a right
to anonymity. Justice Thomas dissented.

Problem: A
Florida Town's "Sagging Pants"
Ordinance

Holly
Beach Florida
adopted an ordinance that made it "a crime
to knowingly wear pants
below the waistline, in a public place, in
a manner that exposes a
person's underwear or bare
buttocks." Supporting the ordinance,
the town's mayor said, "Cities should have
the right to maintain social
standards of decency. They have the
right to draw the
line." Several violators challenged
the ordinance. At a
hearing, the plaintiffs offered a
professor of fashion design who said
"the low slung pants look" began as "an
expressive concept" and showed
photos of people ranging from Prince Harry
to Zac Efron wearing saggy
pants that exposed underwear.

Do the plaintiffs have a good First
Amendment argument? Do you see a way
of distinguishing the
decision in South Florida Free
Beaches? Would it violate
the
First Amendment for a town to adopt a
Taliban-inspired ordinance that
banned almost all exposure of skin?
Could a town outlaw tatoo
parlors?

Scene of draft card burning from a production of
"Hair."
Photo by Rich Copley | LexGo.com.Questions

1. What are the essential
elements
of "speech" for purposes of the First Amendment?
Is an intention
to communicate essential? Is it essential also
that someone
actually understand the message?
2. Is a speaker of Greek protected if no one in
her audience
understands a word of the language? Is it "speech"
to send smoke
signals when there is no one around to see the smoke?
3. Are all forms of art and music "speech" within
the meaning of
the First Amendment?
4. How should courts analyze First Amendment
issues when the
regulated activity includes both speech and non-speech
("conduct")
elements? is the test developed by the Court in O'Brien a good
one? Do you
agree with its application in that case?
5. Doesn't speech always
involve some elements of conduct, whether it is the
moving of vocal
cords, the placing of ink on paper, or the typing that
sends a message
into cyberspace?
6. What was Johnson trying to communicate by
burning an American
flag? Would he have a First Amendment argument if
punished for
burning a flag in his own backyard when no one was
watching?
7. Do you agree with the Court in Buckley that
campaign donations
and campaign expenditures should be considered a form of
"speech"? If government today could ban all campaign
expenditures, what
could our politics look like?
8. Was the court in South
Florida Free Beaches too quick to reject the
First Amendment
argument? Is it plausible that the plaintiffs in
that case were
primarily trying to send a message to onlookers?
Would nude
plaintiffs have a better First Amendment argument if
they started
dancing or kept shouting, "Hey look, we're nude and
proud!"
9. When you sign a petition are you engaged in
"speech" within
the meaning of the First Amendment? What do you
think of Justice
Scalia's characterization of petition signing as "a
legislative act"
not within the freedom of speech?